Serbia Justice Functional Review

d. Quality in Case Processing

This section reviews several indicators and European benchmarks relating to quality of case processing, corresponding to Indicator 2.3 of the Performance Framework.

i. Use of Standardized Forms, Templates and Checklists

Stakeholders routinely reported that the absence of a consistent approach to routine documentation was a key factor undermining consistency in case processing. USAID SPP reports they have attempted to introduce templates and checklists for court users (either attorneys or unrepresented litigants) in various parts of case processing. However, the uptake has generally been poor. Individual Court Presidents may encourage them for a time out of personal initiative. For example, the Vrsac Basic Court developed a ‘user checklist’ to assist parties in navigating the case process. The team in Vrsac reported that raising the level of awareness of parties had the effect of raising the quality of interaction between court staff and parties (see the Efficiency Chapter). However, there is no common approach nor has any endorsement been made by the Appellate Courts, SCC, or HJC.

ii. Extent of an Implementation Gap (the ‘Law on the Books’ vs. the Law in Practice)

To measure the extent of an ‘implementation gap’ between the ‘law on the books’ and the law in practice, Process Maps have been used to compare de jure and de facto case processing.342 These maps are discussed in detail in a Companion Piece to the Functional Review entitled, Judicial Process Maps in Serbia, World Bank MDTF-JSS, 2014. The conclusions highlight what works well, where problems occur, and the likely costs to the parties.

In terms of what works well, the maps reveal that the procedure in practice often reflects the law on the books. For example, in the case of divorce proceedings relating to family violence, the mapping process identified that the protection measures against family violence appear to work very well and are timely. Similarly, in the case of mutual consent to divorce, the mapping process highlighted that these are resolved easily and as the law intended.

However, the maps highlight that the de facto case processing requires users to undertake additional steps not envisaged by the law, and takes longer than anticipated under the law. Across the board, all maps highlight that cases routinely become ‘stuck’ at the stage of the identification of addresses and service of process.343 Other problems include low-quality work by expert witnesses, as well as delays in the receipt of witness reports and allegations that expert witnesses are paid by parties to provide partial advice. In domestic violence cases, concerns predictably include low reporting of family violence and lack of cooperation or coordination with police, as well as sentencing leniency. Across the board, the most significant problems identified concern the non-enforcement of both civil and criminal judgments, which undermine the quality of justice.

iii. Consistency in the Implementation of Law and Perceptions of the Quality of Judicial Work

There is widespread concern within the judiciary regarding inconsistent interpretation of laws and inconsistent jurisprudence. In the Multi-Stakeholder Justice Survey, 80 percent of judges, prosecutors and lawyers stated that inconsistent interpretation of laws and inconsistent jurisprudence happen at least from time to time, if not often. More than two-thirds of lawyers reported that selective implementation of laws and non-enforcement of laws occurs frequently. However, only about one-third of judges and prosecutors shared this view (see Figure 59) Judges, prosecutors and lawyers also reported mixed feelings about whether these four problems are improving or worsening over time.

Unsurprisingly, the general public reports a lack of confidence that the law will be implemented effectively. In the Argus 2014 Survey, 64% of the general public assessed that the enforcement of the law is poor, and only 7% assessed it to be good.345

Inconsistency and selectivity can result from challenges in case processing. This affects some types of cases more than others. An example of the challenges arising in processing abuse of office cases is at Box

Box 9: Challenges in Processing Abuse of Office Cases

Abuse of office cases provide an example of a type of case that is particularly challenging to process. Stakeholders report that challenges arise due to a range of factors relating to the quality of laws, the efficiency of the courts, capacity and integrity, all of which affect the quality of case processing.

First, the law is not clear. The definition of a ‘responsible officer’ under article 359 of the Criminal Code has been loose and included both public officials and owners and managers of private companies. The definition of wrongful conduct is also loose, and encompasses anything from misrepresentation to fraud and corruption cases to embezzlement, inside trading and the operation of Ponzi schemes. Article 359 has thus been used as a fallback alternative charge in a large number of cases.

Second, necessary skills are lacking. The processing of white-collar crime cases requires sophisticated investigative skills, including forensic accounting skills, which are often lacking in prosecution or police offices. Further, many judges are not familiar with accounting concepts and have little experience in dealing with white-collar crime cases. Limited training has been provided. So, actors along the criminal chain find it difficult to engage with the complexity of the evidence.

Third, a feeling of inertia has developed. Judges report a level of discomfort in dismissing these cases, for fear that they may be perceived as unduly influenced or ‘soft on corruption’, and also express discomfort in convicting defendants of this offence. They report that they are unsure how appellate courts will react, so the better thing to do is ‘wait and see’. Prosecutors report a dislike of these cases, due to the above challenges, plus the low conviction rates. Defendants in these types of cases also tend to abuse procedure or cause delays for tactical advantage, and some may also engage in informal means to affect the process.

As a result, many of abuse of office cases become backlogged. For example, the Higher Court in Kragujevac reports that the majority of its backlog consists of article 359 cases. Among the backlogged cases is an emblematic group of cases of alleged fraud against professors and students at the Law Faculty of Kragujevac, which have been beset by a series of procedural delays.

In 2013, the Criminal Code was amended to create separate offences for public and private actors, but the implementation challenges remain.

There has also been a reported decrease in the quality of judicial work, as reported by judges, prosecutors and lawyers. Lawyers are particularly dissatisfied with the quality of work of judges they appear before.346 By contrast, 67 percent of prosecutors rated the quality of judges as high or very high in 2009, and 54 percent in 2014.347 Perhaps self-servingly, but still not very positive, 61 percent of judges rated quality as high or very high in 2009 and 50 percent in 2014, and 7 percent of judges perceived the quality of judicial work to be low. With only half of judges reporting that the quality of judicial work is high, there is clearly some room for improvement.

iv. Use of Specialized Case Processing for Particular Case Types

There are few examples of specialization in case processing in the Serbian judiciary. Commercial Courts have specialized their case processing somewhat, and stakeholders report that this has improved the quality and consistency of both case-processing and decision-making. Misdemeanor Courts are a type of specialized court, but within their jurisdiction is a broad range of cases from customs and tax offences to traffic infringements, yet few mechanisms exist to tailor case processing to these very different types of cases.

The most conspicuous absence of tailored case processing relates to small claims in Basic Courts. Among the 235,475 civil litigious cases incoming to the Basic Courts in 2013 is a significant proportion of claims for which the value is under 300EUR.349 Procedural rules for these small claims are the same as for other civil litigation, except for a few requirements unrelated to timeliness. As outlined in the Efficiency Chapter, the average time to disposition for civil litigious cases in the Basic Courts was 277 days, with wide variations in days ranging from 181 in Pancevo Basic Court, to 429 in Belgrade Second Basic Court. Although the official definition of a backlogged case in Serbia is two years, one would expect small claims to be dealt with much quicker.

Stakeholders pointed to a range of ways in which small claims become 'stuck' in the larger litigation process in Basic Courts. Several stakeholders report that judges are reluctant to decide on a case without reliance on an expert witness, but the cost of engaging the expert witness may outweigh the value of the claim. Others report they languish because attorneys are not as active in pursuing them. Stakeholders also report that parties who self-represent in these cases have limited understanding of civil procedure laws, which are complex and continually changing. A streamlined process for small claims would seem warranted.

In the Basic Prosecution Offices, deputy prosecutors report that they ‘do everything the same way’. Cases are assigned according to the plan approved by the Chief Prosecutor, and some limited exceptions are made in cases where particular skills are needed, such as juvenile delinquency and cyber-crime. Deputy Prosecutors report that they would prefer to specialize further and develop skills to ensure better quality in case processing, particularly for the investigation and prosecution of fraud cases and gender-based violence cases. For discussion of internal organization, see the Governance and Management Chapter.

Stakeholders report that there are few mechanisms for cooperation in case processing. In advanced judiciaries, Court Presidents may convene ‘court user forums’, where stakeholders such as police, prosecutors, lawyers, social workers, bailiffs and frequent court users, such as large creditors, would periodically meet with court management to raise issues and discuss opportunities to coordinate their work. Where mechanisms do exist, they have been based on personal initiative and have not generally lasted beyond the term of an individual Court President.

One example where coordination is required to ensure quality in case processing relates to overlapping criminal offences. Elements of specific offences could be qualified as both criminal and misdemeanor offences - or as both criminal and commercial offences -, 350 and any justice system must develop a mechanism to resolve this overlap. In Serbia, police often submit both misdemeanor and criminal charges for the same incident, and do not inform the prosecutor of the duplication. Whilst it is not possible to estimate how many ‘double’ processes occur, stakeholders reported that such duplication is not uncommon.

Overlapping charges cause problems for defendants and can lead to ECHR violations. This issue arose before the European Court of Human Rights (ECtHR) in the case Maresti v. Croatia.351 In that case, Croatia was held to have violated Article 4 of Protocol No. 7 because Maresti was prosecuted twice for the same offence. The ECtHR noted that it was obvious that the police had lodged a request for criminal proceedings to be brought against the applicant before the Misdemeanor Court, and had also submitted a report on the same incident with the State Attorney's Office without informing either of the duplication. Bearing in mind the similar legal heritage and practice of Serbia and Croatia, there is a concern that such rights violations could occur in Serbia. For further discussion of Serbia’s ECHR compliance, see below.

Overlapping offences also cause inefficiency within the court system. The same incident burdens both the courts - once for the misdemeanor offence, with its procedure and legal remedies, and again for criminal offence with its procedure and legal remedies. Ultimately, resolution would require a further decision by the Appellate Court to dismiss one charge in favor of the other. Double-charging thus unnecessarily increases caseloads, lengthens the duration of proceedings, and increases costs for the parties and the courts. The court in Zrenjanin, however, has found an easy and affordable way to avoid this problem, see Box 10 below.

In Zrenjanin, the relevant institutions have developed a simple and good practice to resolve this problem in family violence cases. With some support from CIDA, the Prosecutor’s Office in Zrenjanin brought together representatives of the police, public prosecution, centers for social work, misdemeanor courts, and others to organize weekly meetings to discuss all family violence cases in the jurisdiction. By coordinating their work, they’re able to avoid double charging to prevent violation of non bis in idem rights while also promoting the rights of victims and witnesses by ensuring that family violence does not ‘fall through the cracks’. This kind of inter-sectorial cooperation at the local level is inexpensive and easy to implement – strengthening, quality, efficiency, and access in the delivery of justice services in Zrenjanin.